No. 01-2413 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ________________ CHERYL A. PETERS, Plaintiff-Appellant v. TIMOTHY JENNEY, individually and in his official capacity as Superintendent of Schools; K. EDWIN BROWN, individually and in his official capacity as Assistant Superintendent for Accountability; NANCY GUY, individually and in her official capacity as a School Board member; SHEILA MAGULA, individually and in her official capacity as Associate Superintendent for Curriculum and Instruction; SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH, VIRGINIA, Defendants-Appellees ________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ________________ BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF AND URGING REVERSAL ________________ RALPH F. BOYD, JR. Assistant Attorney General DENNIS J. DIMSEY SETH M. GALANTER Attorneys Civil Rights Division Department of Justice Appellate Section - PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 307-9994
Transcript
No. 01-2413
IN THE UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT
________________
CHERYL A. PETERS,
Plaintiff-Appellantv.
TIMOTHY JENNEY, individually and in his official capacity as Superintendent ofSchools; K. EDWIN BROWN, individually and in his official capacity as Assistant
Superintendent for Accountability; NANCY GUY, individually and in her official capacity as a School Board member; SHEILA MAGULA,individually and in her official capacity as Associate Superintendent for
Curriculum and Instruction; SCHOOL BOARD OF THE CITY OF VIRGINIABEACH, VIRGINIA,
Defendants-Appellees________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA
________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAESUPPORTING PLAINTIFF AND URGING REVERSAL
________________
RALPH F. BOYD, JR. Assistant Attorney General
DENNIS J. DIMSEYSETH M. GALANTER Attorneys Civil Rights Division Department of Justice Appellate Section - PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 307-9994
C. Since Retaliation Is Prohibited By Section 601, That RetaliationIs Also Prohibited By Agency Regulations Does Not Bar PrivateEnforcement Through The Section 601 Right Of Action . . . . . . . . . 22
Local 138, Int’l Union of Operating Eng’rs, 148 N.L.R.B. 679 (1964) . . . . . . . . 18
Random House Dictionary of the English Language (2d ed. 1987) . . . . . . . . . . . . 7
Revised Statement of Policies for School Desegregation Plans under Title VI of the Civil Rights Act of 1964 (March 1966) . . . . . . . . . . . . . . . . 9
United States Commission on Civil Rights, Report (1961) . . . . . . . . . . . . . . . 12, 13
U.S. Dep’t of Justice, Title VI Legal Manual (Jan. 11, 2001) . . . . . . . . . . . . . 21, 22
U.S. Dep’t of Justice, Title IX Legal Manual (Jan. 11, 2001) . . . . . . . . . . . . . . . . 21
Webster’s II New Riverside University Dictionary (1988) . . . . . . . . . . . . . . . . . . . 7
vii
IN THE UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT
________________
No. 01-2413
CHERYL A. PETERS,
Plaintiff-Appellantv.
TIMOTHY JENNEY, individually and in his official capacity as Superintendent ofSchools; K. EDWIN BROWN, individually and in his official capacity as Assistant
Superintendent for Accountability; NANCY GUY, individually and in her official capacity as a School Board member; SHEILA MAGULA,individually and in her official capacity as Associate Superintendent for
Curriculum and Instruction; SCHOOL BOARD OF THE CITY OF VIRGINIABEACH, VIRGINIA,
Defendants-Appellees________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA
________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAESUPPORTING PLAINTIFF AND URGING REVERSAL
________________
STATEMENT OF THE ISSUE
Section 601 of Title VI of the Civil Rights Act of 1964 prohibits
discrimination on the ground of race in any program or activity receiving federal
financial assistance. 42 U.S.C. 2000d. In this brief, the United States will address
the following question:
Whether Section 601, and thus the implied private right of action for
violations of Section 601, encompasses a prohibition on retaliation for opposing
unlawful race discrimination.
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INTEREST OF THE UNITED STATES
The United States Department of Education administers federal financial
assistance to programs and activities and is authorized by Congress to effectuate
Title VI in those programs and activities. 42 U.S.C. 2000d-1. The Department of
Justice, through its Civil Rights Division, coordinates the implementation and
enforcement of Title VI by the Department of Education and other executive
agencies. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (1980).
Voluntary compliance with Title VI and its regulations is critical to
achieving the objective of the statute -- the elimination of racial discrimination in
federally-funded programs. Cf. Local No. 93, Int’l Ass’n of Firefighters v.
Cleveland, 478 U.S. 501, 515 (1986). The United States thus has an interest in
ensuring that individuals advocating compliance with or opposing violations of
Title VI’s prohibition on racial discrimination have an effective means of
redressing retaliation. The United States has previously participated as amicus
curiae on similar issues in the Supreme Court in Lau v. Nichols, 414 U.S. 563
(1974), Cannon v. University of Chicago, 441 U.S. 677 (1979), and Alexander v.
Sandoval, 532 U.S. 275 (2001), and recently filed a brief as amicus curiae on a
similar issue before this Court in Litman v. George Mason University, No. 01-
2128.
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STATEMENT OF THE CASE
According to the allegations of the complaint, the Office for Civil Rights
(OCR) of the U.S. Department of Education determined that the Virginia Beach
School District’s program for gifted children had discriminated against minority
children in violation of Title VI of the Civil Rights Act of 1964. Cheryl Peters,
who had experience in redesigning programs for gifted children to meet the
requirements of OCR, was hired in August of 1997 by the school district as the
director of gifted education and magnet school programs. The district asked
Peters to construct an action plan for the gifted program to bring it into
compliance with the requirements of Title VI. The school board and OCR both
approved the plan Peters designed (Complaint ¶¶ 14-15, 12-13, 16, 18-19).
When Peters began to implement the plan, however, school officials
discredited Peters and undermined her authority because of her efforts to end
discrimination, on the ground of race, in the gifted program. School officials
recommended that she be suspended, but after public opposition by parents of
minority students, the recommendation was withdrawn. In 1999 Peters’
employment contract was not renewed for the same retaliatory reason (Complaint
¶¶ 26-27, 33, 37, 39-40).
In February 2001, Peters filed this action alleging that the school district
and some of its officials and employees retaliated against her in violation of Title
VI of the Civil Rights Act of 1964 and the First Amendment (through 42 U.S.C.
1983), as well as defamed her in violation of state law (Complaint ¶¶ 41-51).
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1 Although captioned a Motion for Summary Judgment, defendants did not arguethat there were no disputes of material fact regarding whether the non-renewal ofher contract was retaliatorily-motivated. Instead, they argued that plaintiff “fails to state a claim upon which relief can be granted” (R. 11 at 9, 10) because,regardless of the facts, retaliation was not actionable under Title VI. Thus, theUnited States relies on the allegations of the complaint in describing the underlying case. The United States takes no position regarding whether plaintiffwill be able to prove these allegations on remand.
Defendants moved to dismiss the Title VI claim solely on the ground that
retaliation was not prohibited by Title VI, but only by the Title VI regulations, and
that there was no private right of action to enforce the regulations in light of the
Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275 (2001).1 The
district court agreed, relying on the holding of Litman v. George Mason
(4th Cir.), for the proposition that retaliation was prohibited by regulations and not
the underlying statute (10/30/01 Tr. 8). Finding no merit to Peters’ other claims,
the court entered judgment for defendants. This appeal followed.
SUMMARY OF ARGUMENT
Title VI of the Civil Rights Act of 1964 was enacted to redress a pervasive
problem of race discrimination in programs and activities receiving federal
financial assistance. The broad language of Section 601 can be read to encompass
a prohibition on discriminating against persons who complain about or oppose
race discrimination. This is the better reading of the statute.
Title VI has been consistently interpreted to prohibit retaliation. The
Supreme Court has also interpreted another anti-discrimination statute to contain a
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prohibition on punishing individuals for opposing discrimination. These decisions
are not unique. Decisions of the courts of appeals, including this Court, have held
in a variety of settings that anti-discrimination statutes that do not expressly
prohibit retaliation can and should be read to include retaliation claims.
The federal agencies charged with the enforcement of Title VI have also
taken the position that retaliation is prohibited by Section 601. This interpretation,
consistent with the text and history of the statute, furthers the statute’s purposes by
assuring that persons cannot be punished for opposing violations of Title VI.
The district court’s contrary holding was based on a misreading of
Alexander v. Sandoval, 532 U.S. 275 (2001). Sandoval involved an attempt to
enforce a discriminatory effects regulation that prohibited conduct the statute
permitted. Sandoval does not bar individuals from bringing an action alleging
intentional discrimination, such as retaliation, where an agency regulation simply
clarifies what conduct the statute itself prohibits.
ARGUMENT
INDIVIDUALS HAVE A PRIVATE RIGHT OF ACTION FOR CLAIMS OF RETALIATION UNDER TITLE VI
A. Individuals Have A Cause Of Action To Enforce Section 601
Section 601 of Title VI of the Civil Rights Act of 1964 provides:
No person in the United States shall, on the ground of race, color, ornational origin, be excluded from participation in, be denied thebenefits of, or be subjected to discrimination under any program oractivity receiving Federal financial assistance.
42 U.S.C. 2000d. Section 602 authorizes agencies providing federal financial
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assistance “to effectuate the provisions of section [601] of this title with respect to
such program or activity by issuing rules, regulations, or orders of general
applicability,” and to enforce such regulations administratively. 42 U.S.C.
2000d-1. Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq.,
which prohibits sex discrimination in educational programs or activities receiving
federal financial assistance, was modeled on Title VI and the statutes are generally
interpreted in tandem. See Cannon v. University of Chicago, 441 U.S. 677, 694-
Although Title VI does not specifically provide for a private right of action
to enforce the statute, the Supreme Court has held that Congress intended to create
such a right of action for violations of Section 601 against fund recipients, see
Cannon, 441 U.S. at 696; Alexander v. Sandoval, 532 U.S. 275, 279-280 (2001),
and that compensatory damages are available in such actions, see Franklin v.
Gwinnett County Pub. Schs., 503 U.S. 60 (1992). Congress ratified those holdings
by enacting 42 U.S.C. 2000d-7, which conditions the receipt of federal funds on a
waiver of state agencies’ Eleventh Amendment immunity to private suits. See
Alexander, 532 U.S. at 280; Litman v. George Mason Univ., 186 F.3d 544, 553-
554 (4th Cir. 1999), cert. denied, 528 U.S. 1181 (2000).
B. Section 601 Itself Prohibits Retaliation For Opposing Race Discrimination
Whether Section 601 can be interpreted to prohibit retaliation is a question
of statutory interpretation, requiring a close examination of the text, structure, and
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2 The standard rules of statutory construction apply even when the statute is anexercise of Congress’s power under the Spending Clause. See Regions Hosp., 522U.S. at 457-464; Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414-420 (1993); Rust v. Sullivan, 500 U.S. 173, 184-190 (1991); School Bd. of NassauCounty v. Arline, 480 U.S. 273, 286 n.15 (1987); Bennett v. Kentucky Dep’t ofEduc., 470 U.S. 656, 665-666 (1985); see also Davis v. Monroe County Bd. ofEduc., 526 U.S. 629, 650 (1999) (citing Bennett for the proposition “that Congressneed not ‘specifically identif[y] and proscrib[e]’ each condition in the legislation”so long as the “statute made clear that there were some conditions placed on receipt of federal funds”).
history of the statute. See Regions Hosp. v. Shalala, 522 U.S. 448, 460 n.5 (1998)
(“In expounding a statute, we must not be guided by a single sentence or member
of a sentence, but look to the provisions of the whole law, and to its object and
policy.”).2
1. Relying on Litman v. George Mason University, 156 F. Supp. 2d 579
(E.D. Va. 2001), appeal pending, No. 01-2128 (4th Cir.), the district court held the
text of Section 601 did not prohibit retaliation for opposing race discrimination
because it prohibited only adverse conduct (exclusion, denial of benefits, or
discrimination) “on the ground of race.” But the phrase “on the ground of” is
broad language, subject to several interpretations. Cf. Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265, 284 (1978) (opinion of Powell, J.) (holding that language
of Title VI was ambiguous); Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S.
582, 592 (1983) (opinion of White, J.) (same).
The relevant definition of the word “ground” is “[t]he underlying condition
prompting an action.” The American Heritage Dictionary 775 (4th ed. 2000);
Webster’s II New Riverside University Dictionary 550 (1988) (same); see also
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Random House Dictionary of the English Language 843 (2d ed. 1987) (“the
foundation or basis on which a belief or action rests”). Certainly a recipient that
acts adversely to a person (either by excluding her from the program, denying her
the program benefits, or otherwise subjecting her to discrimination) because she
has opposed race discrimination is taking an action in which race-motivated
conduct is an “underlying condition” or “basis” of its decision. The district
court’s interpretation, by contrast, is inconsistent with the broad scope that should
be accorded this language. Cf. North Haven Bd. of Educ. v. Bell, 456 U.S. 512,
521 (1982) (“There is no doubt that ‘if we are to give [Title IX] the scope that its
origins dictate, we must accord it a sweep as broad as its language.’”).
2. In choosing among possible readings of Section 601, it is useful to note
that reading the statute to prohibit retaliation is consistent with early
interpretations of Title VI. For example, in the 1960s, school districts could meet
their obligations under Title VI and the Fourteenth Amendment to desegregate
previously racially segregated school districts by enacting “freedom of choice”
plans. Black students, however, were often retaliated against for exercising their
right to attend formerly white schools. See United States v. Jefferson County Bd.
of Educ., 372 F.2d 836, 888 n.110 (5th Cir. 1966), adopted en banc, 380 F.2d 385,
389 (5th Cir. 1967), cert. denied, 389 U.S. 840 (1967); Cypress v. Newport News
Coppedge v. Franklin County Bd. of Educ., 273 F. Supp. 289, 295-296 (E.D.N.C.
1967), aff’d, 394 F.2d 410 (4th Cir. 1968). For this reason, the Department of
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Health, Education, and Welfare (the predecessor to the Department of Education)
issued guidelines under Title VI that provided that school districts were
responsible for protecting students who exercised their rights under a freedom of
choice plan (i.e., individuals attacked not because of their race but because they
chose to exercise their rights). See Revised Statement of Policies for School
Desegregation Plans under Title VI of the Civil Rights Act of 1964 § 181.52
(March 1966), reprinted in Guidelines for School Desegregation: Hearings
Before the Special Subcomm. on Civil Rights of the House Comm. on the
Judiciary, 89th Cong., 2d Sess. App. A32 (1966). The Fifth Circuit, sitting en
banc, held that these guidelines “comply with the letter and spirit of the Civil
Rights Act of 1964,” and incorporated them into a model decree that it required all
district courts in the Circuit to employ. United States v. Jefferson County Bd. of
Educ., 380 F.2d at 390, 392. This holding in a prominent Title VI case can be
presumed to have been known and ratified when, after studying the guidelines,
Congress amended Title VI to add a provision stating that it was national policy
that the “guidelines and criteria established pursuant to title VI * * * dealing with
conditions of segregation by race, whether de jure or de facto, in the schools of the
local educational agencies of any State shall be applied uniformly in all regions of
the United States.” Elementary and Secondary Education Amendments of 1969,
Pub. L. No. 91-230, § 2, 84 Stat. 121 (1970) (codified at 42 U.S.C. 2000d-6). See
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986)
(“Where, as here, ‘Congress has not just kept its silence by refusing to overturn the
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administrative construction, but has ratified it with positive legislation,’ we cannot
but deem that construction virtually conclusive.”).
3. The Supreme Court, this Court, and a majority of the courts of appeals
have interpreted anti-discrimination statutes to contain within them a prohibition
on punishing individuals for complaining about or advocating an end to
discrimination even absent a specific mention of retaliation.
The Supreme Court did so in Sullivan v. Little Hunting Park, Inc., 396 U.S.
229 (1969). Sullivan was a white man who owned two homes in a community,
each of which came with a “membership share” that entitled the shareholder to use
a community park owned and operated by a non-profit corporation. Sullivan
rented one of the houses to Freeman, a black man, and attempted to assign one of
the membership shares to him. The board of directors refused to approve the
assignment because Freeman was black. When Sullivan protested that action, he
was expelled from the corporation and lost both his shares. He sued the
corporation, alleging a violation of 42 U.S.C. 1982, which provides that “[a]ll
citizens of the United States shall have the same right, in every State and Territory,
as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.” The Court held that Sullivan had standing to
maintain an action under Section 1982 not just for being denied the right to
complete his transaction with Freeman, but for “expulsion for the advocacy of
Freeman’s cause.” 396 U.S. at 237. The Court explained that “[i]f that sanction,
backed by a state court judgment, can be imposed, then Sullivan is punished for
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trying to vindicate the rights of minorities protected by § 1982. Such a sanction
would give impetus to the perpetuation of racial restrictions on property.” Ibid.
This Court has likewise interpreted statutes that on their face deal only with
discrimination to also prohibit retaliation. In Fiedler v. Marumsco Christian
School, 631 F.2d 1144 (1980), this Court interpreted the scope of 42 U.S.C. 1981,
which provides that “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts
* * * as is enjoyed by white citizens.” In that case, a white student was initially
expelled from a private school because she was dating a black student; the school
subsequently offered to rescind the expulsion if she would not associate with the
black student, but upon learning that her father had contacted the NAACP about
the school’s actions, decided that her expulsion would remain in effect and
expelled her sister as well. This Court held that it was “immaterial” whether the
expulsion was viewed as caused by her “association with” the black student “or
because of [her family’s] attempts to vindicate their constitutional and statutory
rights” because Section 1981 “affords a remedy for both the initial expulsion and
the retaliatory expulsions.” Id. at 1149 n.7.
The basic rationale relied upon by the other courts of appeals in reaching
this same holding under Section 1981 is that “a retaliatory response by an
employer against such an applicant who genuinely believed in the merits of his or
her complaint would inherently be in the nature of a racial situation.” Sester v.
Novack Inv. Co., 638 F.2d 1137, 1146 (8th Cir.), modified on other grounds, 657
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3 See, e.g., Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998); In reMontgomery County, 215 F.3d 367 (3d Cir. 2000), cert. denied, 531 U.S. 1126(2001); Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir. 1977); Miller v.Fairchild Indus., Inc., 876 F.2d 718 (9th Cir. 1989); Skinner v. Total Petroleum,Inc., 859 F.2d 1439 (10th Cir. 1988); Andrews v. Lakeshore Rehab. Hosp., 140F.3d 1405 (11th Cir. 1998); cf. McKnight v. General Motors Corp., 908 F.2d 104,111 (7th Cir. 1990) (requiring showing that retaliation had racial motivation), cert.denied, 499 U.S. 919 (1991).
4 For evidence from the Commission’s Report (1961), of retaliation in the publicschool setting in particular, see, e.g., Volume 1, supra, at 164 (“In six of the
(continued...)
F.2d 962 (en banc), cert. denied, 454 U.S. 1064 (1981); see Goff v. Continental
Oil Co., 678 F.2d 593, 599 (5th Cir. 1982) (“it would be impossible completely to
disassociate the retaliation claim from the underlying charge of discrimination”).
This is the consensus of the courts of appeals as to Section 1981.3 There is no
reason why Title VI should not be similarly interpreted.
4. A statute must be read in light of the problems with which Congress was
confronted. See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 118 (1983)
(“As in all cases of statutory construction, our task is to interpret the words of [the
statute] in light of the purposes Congress sought to serve.”); Warner v. Goltra,
293 U.S. 155, 158 (1934) (Cardozo, J.) (“Our concern is to define the meaning [of
a term] for the purpose of a particular statute which must be read in the light of the
mischief to be corrected and the end to be attained.”). By the time Congress
enacted Title VI in 1964, not only had it received a multi-volume report from the
United States Commission on Civil Rights documenting that retaliation and
reprisal against those who advocated non-discrimination were widespread,4 but it
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4(...continued)counties, white school officials were said to have warned Negro teachers not to tryto register or to ‘agitate’ for their own rights or those of others on pain of losingtheir jobs.”); ibid. (“teachers must sign a statement that they are not now, have notbeen, and will not become members of the NAACP”);Volume 2, supra, at 42-43,179 (harassment and assault of whites who did not boycott integrated schools); id.at 53, 74-75 (state laws punishing school board members and teachers whosupported segregation); Volume 5, supra, at 35 (attack on reverend attempting toenroll black children in white school). For examples outside the school context,see, e.g., Volume 1, supra, at 45, 60-61, 164; Volume 5, supra, at 7-8, 29-33, 35,36, 40, 174 n.35, 176 n.39, 188-189 n.51.
5 Integration in Public Education Programs: Hearings Before the Subcomm. onIntegration in Federally Assisted Public Educ. Programs of the House Comm. onEduc. & Labor, 87th Cong., 2d Sess. 439 (1962); see also id. at 469, 491-522(incidents in which university faculty members were removed because they wereperceived as supporting integration); id. at 470-471, 486 (Arkansas, Mississippi,and South Carolina barred public employment of members of the NAACP); id. at480, 696 (white families who refused to boycott integrated schools subject toharassment and coercion); id. at 485, 591 (state laws limited NAACP’s right tobring desegregation lawsuits); id. at 487 (Louisiana required discharge of anyteacher who recommended a black student to a previously white university); CivilRights – 1959: Hearings Before the Subcomm. on Constitutional Rights of theSenate Comm. on the Judiciary, 86th Cong., 1st Sess. 108 (1959) (Sen. Douglas)(“there have been other tragic efforts to intimidate and repress those who wouldassert their rights and also the friends and sympathizers who want the law of theland to be observed in their communities”); id. at 89-101, 529-532, 557, 579, 1527-1603 (testimony and summaries of laws and newspaper reports regardingreprisal, violence, and intimidation against NAACP, blacks who exercised theirrights, and whites who opposed discrimination); Civil Rights: Hearings BeforeSubcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong., 1st Sess. 1070-1075, 1212-1213, 1249-1250, 1280-1282, 1340-1341 (1963) (same).
also heard testimony to the same effect in its own hearings on the subject, leading
Senator Keating (one of the sponsors of the Civil Rights Act) to state that “[t]here
is no question that school officials and parents and children have been harassed in
a number of cases.”5 Indeed, courts at the time took judicial notice that many
entities has resisted the Supreme Court’s decisions prohibiting racial
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6 Other published decisions of the time reflected the variegated methods used toretaliate against those who advocated in favor of non-discrimination. See, e.g.,NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (law requiringidentification of rank-and-file members of organization advocating desegregation“exposed these members to economic reprisal, loss of employment, threat ofphysical coercion, and other manifestations of public hostility”); Scull v. Virginiaex rel. Comm. on Law Reform & Racial Activities, 359 U.S. 344 (1959) (legislativecommittee investigating person who counseled blacks about their rights); Brewer v. Hoxie Sch. Dist., 238 F.2d 91 (8th Cir. 1956) (individuals harassing andintimidating school officials and parents to prevent integration); Louisiana StateUniv. v. Ludley, 252 F.2d 372, 375 (5th Cir.) (state law providing that schoolteachers shall be fired for “advocating or in any manner * * * bringing aboutintegration of the races within the public school system or any public institution ofhigher learning”), cert. denied, 358 U.S. 819 (1958); United States ex rel. Goldsbyv. Harpole, 263 F.2d 71, 82 (5th Cir.) (lawyers for criminal defendants fail tochallenge exclusion of blacks from jury due to “risk of personal sacrifice whichmay extend to loss of practice and social ostracism”), cert. denied, 361 U.S. 838(1959); Bullock v. United States, 265 F.2d 683 (6th Cir.) (mob assaulting an“integrationist” who escorted black children into a formerly segregated school),cert. denied, 360 U.S. 909 (1959); United States v. Wood, 295 F.2d 772 (5th Cir.1961) (sheriff arresting person instructing blacks how to register to vote), cert.denied, 369 U.S. 850 (1962); Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963)(legislative committee investigating and harassing lawyers for black plaintiffs);
(continued...)
discrimination and that such resistance included “manifestations of ill will toward
white and colored citizens who are known to be sympathetic with the aspirations
of the colored people for equal treatment, particularly in the field of public
education.” NAACP v. Patty, 159 F. Supp. 503, 515-516 (E.D. Va. 1958) (three-
judge court), vacated on abstention grounds, 360 U.S. 167 (1959); see also
NAACP v. Button, 371 U.S. 415, 435 & n.15 (1963) (citing Patty as support for
“the fact that the militant Negro civil rights movement has engendered the intense
resentment and opposition of the politically dominant white community of
Virginia”).6
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6(...continued)United States v. McLeod, 229 F. Supp. 383 (S.D. Ala. 1964), rev’d, 385 F.2d 734(5th Cir. 1967) (grand jury investigating lawyers bringing civil rights cases);United States v. Dallas County, 229 F. Supp. 1014 (S.D. Ala. 1964), rev’d, 385F.2d 734 (5th Cir. 1967) (sheriff arresting persons assisting blacks in registering tovote).
Accepting the holding in Cannon v. University of Chicago, 441 U.S. 677
(1979), and Alexander v. Sandoval, 532 U.S. 275 (2001), that Congress intended
individuals to be able to bring suit to enforce their rights under Title VI, surely
Congress did not intend to create a right and a cause of action to enforce that right,
but permit individuals to be punished for exercising their rights or opposing
violations of those rights. See Cannon, 441 U.S. at 704 (Congress “sought to
accomplish two related, but nevertheless somewhat different, objectives. First,
Congress wanted to avoid the use of federal resources to support discriminatory
practices; second, it wanted to provide individual citizens effective protection
against those practices.” (emphasis added)).
5. The district court relied on the reasoning of Litman v. George Mason
(4th Cir.). Litman reasoned that the structure of the Civil Rights Act of 1964 cut
against finding that Title VI itself prohibited retaliation. Title VII of the Civil
Rights Act of 1964, enacted contemporaneously with Title VI, has a separate anti-
retaliation provision that makes it unlawful for an employer to “discriminate
against any of his employees * * * because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
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charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. 2000e-3(a). Because
Congress is presumed not to enact redundant provisions, the presence of an anti-
retaliation provision in Title VII might be understood to mean that Congress did
not intend Title VII’s general prohibition on discrimination against any individual
“because of such individual’s race, color, religion, sex, or national origin,” 42
U.S.C. 2000e-2, to encompass such claims. The district court in Litman concluded
that since Congress had used language similar to Title VII’s general prohibition in
Title VI, the same absence of intent to proscribe retaliation existed in Title VI.
But courts have declined to find the existence of Title VII’s anti-retaliation
provision to be dispositive as to whether Congress intended to prohibit retaliation
in other parts of the statute. For example, as originally enacted, Title VII did not
apply to the federal government. Congress amended Title VII in 1972 to add a
separate section providing that “[a]ll personnel actions affecting employees [of the
federal government] or applicants for employment * * * shall be made free from
any discrimination based on race, color, religion, sex, or national origin,” 42
U.S.C. 2000e-16(a), and providing for a private right of action for an employee
aggrieved by the administrative decision “on a complaint of discrimination based
on race, color, religion, sex, or national origin,” 42 U.S.C. 2000e-16(c). Despite
the absence of any mention of retaliation, the courts of appeals have held that this
provision prohibits retaliation as well. Most courts of appeals have reasoned that
the statute’s broad prohibition on “any discrimination” necessarily encompasses
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7 Courts have relied on two other rationales for finding that Title VII’s federal-sector provision prohibits retaliation. In an earlier opinion, the Ninth Circuit hadreasoned that the federal sector Title VII provision prohibited retaliation because itincorporated a remedial provision of the private sector part of Title VII that itselfreferred to retaliation. See Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir. 1976). This rationale, while correct, is rooted in textual provisions of Title VII that haveno analogy in Title VI and thus would not support the argument in the text.
Similarly, the Third Circuit concluded that because the federal sectorprovision was modeled on an earlier statute that had been administrativelyinterpreted to prohibit retaliation, Congress had intended to incorporate thatprohibition into the new statute as well. See Sperling v. United States, 515 F.2d465, 484 (3d Cir. 1975), cert. denied, 426 U.S. 919 (1976). While the rationale ofthat case would support finding that statutes modeled on Title VI, such as Title IX,prohibited retaliation, it also does not directly support the argument in the text.
retaliation. See, e.g., Porter v. Adams, 639 F.2d 273, 277-278 (5th Cir. 1981);
White v. General Servs. Admin., 652 F.2d 913, 917 (9th Cir. 1981); Canino v.
(1963); see also Roberts v. NLRB, 350 F.2d 427, 428 (D.C. Cir. 1965) (anti-
retaliation provision of NLRA “only made clear that which was implicit” in
general prohibition). The Supreme Court confirmed this reading of the statute in
1968. See NRLB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S.
418 (1968) (unions prohibited from retaliating against employee for filing a charge
with NLRB under Section 8(b)(1)). While there is no question that the prohibitory
language of Title VII differs from that of the NLRA, Congress’s reliance in
drafting Title VII on a statute whose anti-retaliation provision had been found to
be redundant undermines the usual anti-redundancy presumption.
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Consequently, Congress’s decision to include a specific anti-retaliation
provision in Title VII and omit it in Title VI is thus not indicative of whether these
broader statutory prohibitions encompass an anti-retaliation claim. Indeed, a
similar structural argument was considered and rejected by the Court in Cannon v.
University of Chicago, 441 U.S. 677 (1979). Defendants in that case argued that
the existence of an express cause of action in Title VII was evidence that Congress
did not intend to create a cause of action for Title VI. See id. at 710. The Court
responded that such an argument was “unpersuasive” because, when dealing with
“a complex statutory scheme” involving multiple provisions, the Court would not
engage in an “excursion into extrapolation of legislative intent” based on what
Congress did in other provisions of the same statute in order to determine what
Congress intended for the provision at issue. Id. at 711. On the same reasoning,
the existence of a retaliation provision in Title VII does not demonstrate that
Congress did not also intend Title VI itself to prohibit retaliation. And of course,
the prohibitory terms of Titles VI and VII are different and interpretations of one
cannot be indiscriminately applied to the other. Compare Griggs v. Duke Power
Co., 401 U.S. 424 (1971) (Title VII prohibits disparate impact), with Alexander v.
Sandoval, 532 U.S. 275 (2001) (Section 601 of Title VI does not prohibit disparate
impact).
6. If the language of the statute is susceptible to more than one
interpretation, the views of the agencies charged with its enforcement should be
considered in selecting among possible meanings. See Robinson v. Shell Oil Co.,
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519 U.S. 337, 346 (1997). Each federal agency that disburses federal financial
assistance is charged with enforcement of Title VI as to its recipients. As a
historical matter, however, the Department of Health, Education, and Welfare and
its successor the Department of Education have been primary enforcers of Title VI
administratively. See Regents of the University of California v. Bakke, 438 U.S.
265, 343 (1978) (Brennan, J., concurring in part). Because of this history, the
Court has described the Department of Education as “the expert agency charged by
Congress with promulgating regulations enforcing Title VI” and deferred to its
reading of the statute. Id. at 372, 342. In addition, the Department of Justice has
been charged by Executive Order with the responsibility to “coordinate the
implementation and enforcement by Executive agencies of” Title VI since its
inception. See Exec. Order No. 11,247, 30 Fed. Reg. 12,327 (1965); Exec. Order
No. 12,250, 45 Fed. Reg. 72,995 (1980). When Congress charges multiple
agencies with enforcing a statute, the Supreme Court generally gives special
deference to the interpretations of the agency charged by Executive Order with
coordinating government-wide compliance. See Consolidated Rail Corp. v.
Darrone, 465 U.S. 624, 634 (1984); Andrus v. Sierra Club, 442 U.S. 347, 357-358
(1979).
The view of both agencies is that the statute itself prohibits retaliation. The
Department of Justice issued a manual to federal agencies regarding recipients’
obligations under Title VI that stated “[a] complainant may bring a retaliation
claim under Title VI or under a Title VI regulation that prohibits retaliation.” U.S.
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Dep’t of Justice, Title VI Legal Manual 65 (Jan. 11, 2001) (available at
www.usdoj.gov/crt/cor/coord/vimanual.pdf). As the Department explained in its
contemporaneously issued manual regarding Title IX:
A right cannot exist in the absence of some credible and effectivemechanism for its enforcement and enforcement cannot occur in the absenceof a beneficiary class willing and able to assert the right. In order to ensurethat beneficiaries are willing and able to participate in the enforcement oftheir own rights, a recipient’s retaliation against a person who has filed acomplaint or who assists enforcement agencies in discharging theirinvestigative duties violates Title IX.
U.S. Dep’t of Justice, Title IX Legal Manual 70 (Jan. 11, 2001) (available at
www.usdoj.gov/crt/cor/coord/ixlegal.pdf). The Department of Education,
consistent with its early guidance discussed on page 9, supra, concurs in this
interpretation.
The agencies’ view is not only consistent with the text of the statute, but it
furthers its purpose as well, and is thus entitled to deference to the extent it is
based on a hands-on understanding of how the statute operates. See Robinson,
519 U.S. at 346. The agencies’ interpretation comports with the general
understanding that a substantive right is chimerical if a person can be punished for
exercising that right. Cf. Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998);
Hanson v. Hoffmann, 628 F.2d 42, 52 (D.C. Cir. 1980) (“The creation of a right is
often meaningless without the ancillary right to be free from retaliation for the
exercise or assertion of that right.”); Goff, 678 F.2d at 598 (similar).
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C. Since Retaliation Is Prohibited By Section 601, That Retaliation IsAlso Prohibited By Agency Regulations Does Not Bar PrivateEnforcement Through The Section 601 Right Of Action
As noted above, the Department of Education and other federal agencies
have consistently interpreted Section 601 to prohibit retaliation. This
interpretation has been embodied in regulations providing that retaliation for filing
a complaint or exercising one’s rights under Title VI is prohibited. See, e.g., 34
C.F.R. 100.7(e) (providing that “[n]o recipient or other person shall intimidate,
threaten, coerce, or discriminate against any individual for the purpose of
interfering with any right or privilege secured by section 601 of the Act or this
part, or because he has made a complaint, testified, assisted, or participated in any
manner in an investigation, proceeding or hearing under this part.”); see also Title
VI Legal Manual, supra, at 65 (noting that “most agency Title VI regulations”
contain anti-retaliation provision).
1. Relying on Alexander v. Sandoval, 532 U.S. 275 (2001), the district
court held that a private plaintiff could not bring a retaliation claim because the
prohibition was embodied in a regulation. This constituted a misreading of
Sandoval. Sandoval held that while some regulations could not be enforced
through the existing statutory cause of action, others could.
Sandoval involved a suit brought to enforce a discriminatory effects
regulation promulgated under Title VI. Id. at 278-279. Based on case law
interpreting Title IX, the Court held that Congress intended to create a private
cause of action to enforce Section 601. Id. at 279-280, 284. The question was
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whether Congress had also intended these particular regulations to be privately
enforced. The Court noted that there were two types of regulations. Regulations
that simply “apply,” “construe,” or “clarify[]” a statute can be privately enforced
through the existing cause of action to enforce the statute because a “Congress that
intends the statute to be enforced through a private cause of action intends the
authoritative interpretation of a statute to be so enforced as well.” Id. at 284. But
regulations that go beyond the statute require a separate cause of action, even if
those regulations were a valid exercise of Congress’s grant of rulemaking
authority. Id. at 285-286.
In applying this dichotomy, the Court relied on its uncontested holding in
prior cases that Section 601 prohibits only disparate treatment (i.e., intentional
discrimination). Id. at 280. Since the Title VI regulations at issue expanded the
Section 601 definition of discrimination to include effects, the effects regulations
could not be viewed merely as an interpretation or application of Section 601. Id.
at 284-285. Accordingly, the Court concluded that Congress would have had to
create (either explicitly or implicitly) a separate private cause of action to enforce
the effects regulations. Id. at 285-286. Assessing the text and structure of the
statute, the Court concluded that Congress had intended only agency enforcement
of the discriminatory effects regulations and had not intended to create a private
right of action to enforce those regulations that went beyond the statute. Id. at
291-293.
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8 The limitations of such administrative proceedings were chronicled in Cannon,441 U.S. at 706 n.41, 708 n.42.
The retaliation regulation, unlike the Title VI effects regulation, prohibits
intentional differential treatment. The Court in Sandoval explained that “[w]e do
not doubt that regulations applying § 601’s ban on intentional discrimination are
covered by the cause of action to enforce that section.” Id. at 284. Therefore,
contrary to the district court’s understanding, the fact that the prohibition on
retaliation appears in a regulation is not dispositive of the inquiry. The question is
whether the text of Section 601 can be interpreted to include an anti-retaliation
prohibition, as reflected in the Department of Education’s regulation -- in which
case the anti-retaliation prohibition can be privately enforced through Section
601’s cause of action for intentional discrimination -- or whether it can be viewed
only as a valid means of “effectuat[ing]” Section 601 -- in which case only the
agency may enforce the anti-retaliation provision. Cf. Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 292 (1998) (“Of course, the Department of Education
could enforce the [regulatory] requirement [that recipients offer a grievance
procedure] administratively: Agencies generally have authority to promulgate and
enforce requirements that effectuate the statute’s nondiscrimination mandate, 20
U.S.C. § 1682, even if those requirements do not purport to represent a definition
of discrimination under the statute.”).8 For the reasons discussed above, the text,
structure, history, and administrative construction all support an interpretation of
Section 601 to include a prohibition on retaliation.
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9 The first decision in Preston was unpublished, but was relied on for this legalholding in the published decision on appeal after remand. Pursuant to Circuit Rule36(c), we have attached a copy of the unpublished opinion as an addendum to thisbrief.
2. This Court’s decisions in Preston v. Virginia, No. 91-2020, 1991 WL
156224 (Aug. 18, 1991), adhered to after remand, 31 F.3d 203 (1994), support
reading the anti-retaliation regulation as merely a specific application of the
prohibition in Section 601 itself. Preston involved a plaintiff who “argue[d] that
retaliatory conduct is prohibited by Title IX.” Id. at *2.9 This Court “agree[d]”
with that contention, reasoning that the Department of Education’s Title IX
regulation prohibiting retaliation was not an “unreasonable” application of the
statute, and remanded for further proceedings. Ibid. On plaintiff’s appeal from an
adverse jury verdict, this Court reiterated the first opinion’s holding that
“[r]etaliation against an employee for filing a claim of gender discrimination is
prohibited under Title IX.” 31 F.3d at 206. This Court explained that “[w]e
previously concluded that the Secretary of Education’s determination that Title IX
should be read to prohibit retaliation based on the filing of a complaint of gender
discrimination is reasonably related to the purpose of Title IX and therefore is
entitled to deference by this court.” Id. at 206 n.2. The Court also concluded that
“Congress intended that Title IX be interpreted and enforced in the same manner
as Title VI.” Ibid.
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This Court should adhere to its decisions in Preston and hold that Section
601 is properly interpreted as including a prohibition on retaliation that can be
enforced through Section 601’s private right of action.
CONCLUSION
The cause of action under Section 601 encompasses claims of retaliation.
The district court’s judgment on this claim should be reversed and the case
remanded for further proceedings.
Respectfully submitted,
RALPH F. BOYD, JR.Assistant Attorney General
BRIAN W. JONES DENNIS J. DIMSEY General Counsel SETH M. GALANTER
AttorneysC. TODD JONES Civil Rights Division Deputy Assistant Secretary Department of Justice Office for Civil Rights Appellate Section – PHB 950 Pennsylvania Avenue, N.W.Department of Education Washington, D.C. 20530
CERTIFICATE OF COMPLIANCE
I certify, pursuant to Fed. R. App. P. 29(d), that the attached Brief for the
United States as Amicus Curiae is proportionally spaced, has a typeface of 14
points, and contains 6990 words.
February 27, 2002 _________________________ SETH M. GALANTER Attorney
CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2002, two copies of the Brief for
the United States as Amicus Curiae Supporting Plaintiff and Urging Reversal were
served by first-class mail, postage prepaid, on the following counsel:
Deborah Culpepper Waters, Esq.Rutter, Walsh, Mills & Rutter415 St. Paul's Boulevard, Suite 700Norfolk, VA 23510
Richard Hoyt Matthews, Esq.Paul Arthur Driscoll, Esq,Pender & Coward, P.C.Greenwich Centre - Suite 400192 Ballard CourtVirginia Beach, VA 23462-6557
